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Decision No. 18,015

Appeal of R.P., on behalf of her children, from action of the Board of Education of the Fairport Central School District regarding immunization.

Decision No. 18,015

(July 6, 2021)

Harris Beach, PLLC, attorneys for respondent, Sara E. Visingard, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Fairport Central School District (“respondent”) that her two children (the “students”) may not receive remote instruction during the 2020-2021 school year for lack of the immunizations required by Public Health Law (“PHL”) § 2164.  The appeal must be dismissed.

Prior to the events described in this appeal, the students attended respondent’s schools.  Respondent had granted the students a religious exemption from the immunization requirements of PHL § 2164.  At the time, PHL § 2164 (9) included provisions authorizing an exemption to required immunizations based on religious beliefs.  On June 13, 2019, however, the legislature enacted Chapter 35 of the Laws of 2019, effective immediately, which repealed the religious exemption contained within subdivision nine of PHL § 2164.[1]

By letters dated July 1, 2019 and September 12, 2019, respondent informed petitioner that the religious exemption had been repealed and that he needed to provide proof of immunization he wanted for the students to continue attending respondent’s schools.  Thereafter, in separate letters dated September 18, 2019, respondent informed petitioner that because no proof of immunization was submitted, the students would be excluded from school effective September 19, 2019.[2]  The record reflects that petitioner homeschooled the students for the remainder of the 2019-2020 school year.  

During the 2020-2021 school year, respondent offered fully remote instruction to its students because of the COVID-19 pandemic.  In September 2020, petitioner inquired as to whether the students could receive remote instruction notwithstanding their lack of vaccinations.  By letter dated September 9, 2020, respondent’s superintendent indicated there had been no “changes to immunization requirements for students who are enrolled in their school districts and receiving remote instruction.”  “Accordingly,” the superintendent wrote, “the District continues to require students who are enrolled in the District to meet the State-mandated immunization requirements or receive a valid medical exemption for immunizations.”  This appeal ensued.[3]  Petitioner’s request for interim relief was denied on January 4, 2021.

Petitioner argues that the Legislature’s repeal of the religious exemption violated his family’s rights as indigenous persons.  Petitioner cites to the American Indian Religious Freedom Act and the United Nations’ Declaration on the Elimination of All Forms of Intolerance of Discrimination Based on Religion and Belief, which is a resolution passed by the United Nations in 1981.  Petitioner requests a determination that the students are entitled to receive “remote instruction” from respondent’s district.

Respondent argues that the appeal must be dismissed, among other grounds, as untimely. and for failure to timely file the petition and related documents with the Office of Counsel in accordance with the requirements of 8 NYCRR 275.9.  On the merits, respondent argues that petitioner has failed to meet his burden of proving that the students are entitled to receive remote instruction.

The appeal must be dismissed for failure to timely file the petition with the State Education Department (“SED”) as required by 8 NYCRR 275.9.  That regulation provides, in relevant part, that “[w]ithin five days after the service of any pleading or paper ... the original, together with the affidavit of verification and an affidavit proving the service of a copy thereof, shall be transmitted” to my Office of Counsel.  The record indicates that the petition was served on respondent on October 20, 2020, but not filed with my office until December 31, 2020, more than two months later.  

While the delay itself may not require dismissal (see Appeal of McSween, 42 Ed Dept Rep 59, Decision No. 14,775), respondent has demonstrated prejudice associated with this delay.  Respondent’s superintendent indicates that, after serving the petition, petitioner requested that “any and all paperwork the District originally received be returned to Petitioner.”  Respondent complied with this request.  Respondent reasonably considered the matter resolved until my Office of Counsel contacted respondent in late December 2020 and informed it that, in fact, petitioner had filed the appeal with SED.[4]  Thus, I cannot find that the failure to file the petition with my Office of Counsel for more than two months was harmless error; as such, the appeal must be dismissed (compare Appeal of a Student with a Disability, 45 Ed Dept Rep 81, Decision No. 15,264 and Appeal of Sigsby, 44 id. 97, Decision No. 15,109).

Even if the appeal were not dismissed for failure to properly file the petition, it would be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving notice of the determination or act (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not reveal when a petitioner actually received such notice, the date of receipt is calculated as the date of the determination or act plus five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Here, petitioner served the petition on respondent on October 20, 2020.  Respondent’s letter informing petitioner that the students would not be allowed to enroll to receive remote instruction during the 2020-2021 school year is dated September 9, 2020.  The record does not indicate exactly when petitioner received the September 9, 2020 letter.  Therefore, applying the usual five days for mailing, the appeal was commenced at least five days late.  Petitioner has not provided any excuse for the delay; therefore, the appeal must also be dismissed as untimely.

Even if the appeal was not subject to dismissal as untimely, it would be dismissed on the merits.  The crux of petitioner’s argument is that the repeal of the religious exemption violates Indigenous persons’ statutory and international rights.  However, “PHL § 2164 is a statute administered by DOH that I have no authority to disregard” (Appeal of J.A., 60 Ed Dept Rep, Decision No. 17,984).  Therefore, any challenge to its provisions, or lack thereof, must be resolved by a court of competent jurisdiction.[5]

In light of this determination, I need not address the parties’ remaining arguments.




[1] PHL § 2164 (7) (a), as amended by Chapter 35 of the Laws of 2019, provides that “[n]o principal, teacher, owner or person in charge of a school shall permit any child to be admitted to such school, or to attend such school, in excess of fourteen days, without [a certificate of immunization] or some other acceptable evidence of the child’s immunization against poliomyelitis, mumps, measles, diphtheria, rubella, varicella, hepatitis B, pertussis, tetanus, and, where applicable, Haemophilus influenzae type b (Hib), meningococcal disease, and pneumococcal disease; provided, however, such fourteen day period may be extended to not more than thirty days for an individual student by the appropriate principal, teacher, owner or other person in charge where such student is transferring from out-of-state or from another country and can show a good faith effort to get the necessary certification or other evidence of immunization or where the parent, guardian, or any other person in parental relationship to such child can demonstrate that a child has received at least the first dose in each immunization series required by this section and has age appropriate appointments scheduled to complete the immunization series according to the Advisory Committee on Immunization Practices [(ACIP)] Recommended Immunization Schedules for Persons Aged 0 through 18 Years.”


[2] Petitioner served a petition on respondent in fall 2019; in response, respondent submitted affidavits in opposition to petitioner’s request for a stay to my Office of Counsel.  These papers were returned to respondent after petitioner failed to file a copy of the petition as required by 8 NYCRR 275.9.


[3] Petitioner submitted separate petitions for each student.  Because the petitions are materially identical, and because respondent submitted one set of answering papers, the petitions shall be referred to herein as a single petition.


[4] A late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589).  For the reasons described above, I accept respondent’s answer into the record.


[5] Additionally, a school district’s provision of remote instruction does not suspend, or excuse noncompliance with, PHL § 2164 (see New York State Department of Health, “Updated Guidance for School Administrators Regarding Limited Temporary Enforcement of Student Immunization Requirement,” Dec. 11, 2020 [“All public and non-public Pre-K to Grade 12 schools must ensure that all students are up to date with all mandatory school vaccinations, regardless of whether they are attending school in-person, via remote learning, or a hybrid model]”).